Eroding Alaska village appeals lawsuit's dismissal

Posted: Friday, January 29, 2010

By RACHEL D'ORO

ANCHORAGE - One of Alaska's most eroded villages wants to revive a lawsuit that claims greenhouse gasses from oil, power and coal companies are to blame for the climate change endangering the tiny community.

The city of Kivalina and a federally recognized tribe, the Alaska Native village of Kivalina, filed the case in federal court in San Francisco in 2008, but it was dismissed in October. Now they're appealing to the 9th U.S. Circuit Court of Appeals, with their opening brief due March 11.

Oil giants Exxon Mobil Corp. and BP PLC are among two dozen defendants named in the lawsuit. Representatives for the two companies declined to comment Thursday.

"These are matters for the courts," said Rob Young, an Exxon spokesman. "We supported the original decision."

Kivalina's attorney, Matt Pawa of suburban Boston, said the plaintiffs want monetary damages to help with the estimated $400 million cost to relocate the northwest Alaska village. Residents have chosen a relocation site, an area known as Kiniktuuraq, about two miles southeast of the current location.

Kivalina is a traditional Inupiat Eskimo community of about 390 people about 625 miles northwest of Anchorage. It's built on an 8-mile barrier reef between the Kivalina River and Chukchi Sea.

Sea ice historically protected the village, whose economy is based in part on salmon fishing plus subsistence hunting of whale, seal, walrus, and caribou. But the ice is forming later and melting sooner because of higher temperatures, and that has left it unprotected from fall and winter storm waves and surges that pummel coastal communities.

"The village is being wiped out by global warming and needs to move urgently before it is destroyed and the residents become global warming refugees," Pawa said. "It's battered by winter storms and if residents don't get some money to move, the village will cease to exist."

In dismissing the case, the court said one of the factors in the decision hinged on the question of whether anyone could ever demonstrate the "causal effect" of global warming as an injury, according to Pawa.

"We're appealing on the grounds the district court was incorrect," he said.

Damage to Kivalina from global warming has been documented in official reports by the U.S. Army Corps of Engineers and the General Accounting Office, Pawa said.

The lawsuit accuses some of the defendants of a conspiracy to mislead the public regarding the causes and consequences of climate change.

The lawsuit invokes the federal common law of public nuisance. Every entity that contributes to the pollution problem harming Kivalina is liable, according to Pawa.

The lawsuit was filed in California because that's where many of the defendants do business.